On the bluster of "more free speech"

I didn't anticipate that my first blog post would be about the proposed changes to Australia's Racial Discrimination Act (1975) (RDA) and yet, here we are! The following text forms part of the letter that I have submitted to the federal government and relevant ministers in response to their call for comments on the Freedom of Speech (repeal of S18c) Bill (2014) - Exposure Draft. This isn't an exhaustive discussion, as I'm sure there are many qualified legal, social, and policy adept individuals and organisations responding to the Exposure Draft. My main points relate to the politicised and obfuscatory arguments being used in favour of changing the RDA.

Regarding the proposed amendments to the Racial Discrimination Act (1975)

I strongly support the right to free speech, but I do not believe that such a right is devoid of responsibility. I also do not think that this right exists as an axiomatic dictum that can be separated from the socio-historical realities of contemporary Australian society. To treat free speech as axiomatic is, I believe, irresponsibly naïve at best.

Firstly I’d like to address some of the discussion points that have appeared in the media in relation to the free speech debate. I feel that the public discussion in favour of changing the RDA do a disservice to the complexities of both racial discrimination and the dynamics of how racist views persist in societies.

Following these discussion points I will add some comments regarding specific sections of the Freedom of Speech (repeal of S18c) Bill - Exposure Draft (Exposure Draft).

The assertion that the best remedy against bigotry and racism is "more free speech,"[i] or an open “marketplace of ideas,”[ii] obfuscates several serious considerations.

1. Firstly, there is no restriction on speech denouncing racism and bigotry that I am aware of, so “more free speech” will not liberalise speech that is counter-racist, it will only liberate speech that is racist. Indeed, the “more free speech” catch-cry appears to be a bait-and-switch slogan that suggests liberalisation when applied to racist speech, but more quantity and effort required when applied to counter-racist speech.

A quick examination of anti-racism programs run by government agencies (NSW Education and Communities Racism, no way, [iii] and the Australian Human Rights Commission’s Racism, it stopswith me [iv] program) suggests that there already are significant quantities and effort employed in countering racism in Australia. I can only imagine how much more effort will be required by counter-racism programs to defeat liberated racism.

2. I am not wholly opposed to the idea of having offensive speech aired openly so that it can be defeated through public discourse, but I think that this approach risks missing the nuances of racial discrimination. An opinion piece in TheAustralian [v] focused on overtly racist groups, such as the League of Rights and Citizens Electoral Council, as likely groups whose views would be ridiculed and denounced via “more free speech.” In theory, permitting such groups to spout their irrational views will result in a public backlash against their organisations, which is understandable. However, selecting these examples of obvious racism demonstrates a failure to appreciate the impact of less overt, subversive, and/or systematic racist sentiments and discourse.

It seems politically expedient to highlight sources of racism that the average Australian would find distasteful to imply that all racism can be shut down with “more free speech.” This fails to account for the sources of racism that the average Australian a) doesn’t find distasteful, b) doesn’t even recognise, or c) is even in tacit agreement with. I am concerned that the recourse options for people subjected to subversive and damaging racism will be curtailed by what appears to me to be a brash and bold “more free speech for everyone” sales pitch.

3. “More free speech” and “free speech will beat bad speech"[vi] sentiments will fail because it has been shown that throwing more facts and more information at the misinformed is ineffective, and even counter-productive, in altering peoples’ opinions of politicised issues.[vii] In short: “Facts don’t necessarily have the power to change our minds.”[viii] Pro-vaccination messaging, for example, has been found to even increase anti-vaccination sentiments in what is referred to as the ‘backfire effect’.[ix] The lowering of our standards of speech in this country will not result in racism being cowed from the public sphere, but will result in racism becoming emboldened and fortified within our communities, because facts about racial harmony will undoubtedly fail to sway, and possibly strengthen, the entrenched biases held by certain individuals and groups.

4. Similar to the above point, a problem I see with a publicly regulated, “more free speech” society is its reliance on idealistic, free-market self-regulation operating within the context of complex socio-historical realities.

Free market proponents promote the idea that the market will self-correct, with consumers preferring to patronise firms that act ethically resulting in unethical firms changing their ways, to catch a market share, or perishing. When applied to free speech, this self-regulation would allegedly result in the public aligning themselves with the truthful and just speakers, leaving the racists to either redeem themselves or retire to the fringes.

I believe that this is naïve at best. A more realistic free market parallel would acknowledge that, in a free market, people can buy that which is not healthy for them, just as they can elect to be informed by peddlers of misinformation. The public can have an unfortunate appetite for the untrue (think of anti-vaccination lobbyists), and apathy or blindness towards the unethical.

5. If we examine the Eatock v Bolt case through a free-market lens, it is clear that Mr Bolt remains a figure of influence despite being found to have included “grossly incorrect”[x] information in his articles relating to a number of Indigenous Australians. Mr Bolt still presents his television show and writes articles for the Herald as “Australia’s most read columnist.”[xi] There has been no public ‘self-regulation’ to redress his unethical practices. If the self-correcting open market of ideas had functioned as proponents suggest it should, then the ethically minded public should now be avoiding Mr Bolt’s media offerings, leaving him to dwindle into obscurity or reform his ways. Here we see the outcome of the above points. That is, the public (consumers) are happy to continue to consume a product despite the unethical practices of its producer, because they are either apathetic to Mr Bolt’s ethics, or are in agreement with Mr Bolt’s position.

One might simply argue that Mr Bolt’s continued popularity is indicative of the fact that the RDA overstepped its intended scope, or that Mr Bolt’s views shouldn’t have been silenced by the “hurt feelings”[xii] of the Australians that he targeted in his articles. Such a defence of Mr Bolt does not diminish my previous points. That is, the marketplace of ideas, championed by promoters of “more free speech” as a means to denounce bigotry, is instead ambivalent to facts and ethics so long as there is consumer demand for a product. This leads me to question the capacity for arbitration to occur in the free market of ideas, where overt racism is proudly targeted for defeat while subversive racism is ignored, unchallenged, unnoticed or even defended. I am concerned about how much other public speech, maligning people based on their race, will be considered acceptable, reasonable, or even desired, by the public if and when the “more free speech” agenda comes into play.

6. In relation to the harm caused by less overt racism, I would like to highlight a point made in the Australian Psychological Society’s (APS) position paper on racism and prejudice. I found it significant to read that qualitative and language-based research, discussed in the APS paper;

“…supports the view that contemporary racist attitudes are subtle, flexible, ambivalent, and embedded in wider social values which, in effect, support and legitimise existing racial inequalities. This is the case even among populations that have been traditionally viewed as non-racist or at least low in racism. Current political and economic emphases on 'competition' and 'economic rationalism' which assume a 'level playing field' help support such attitudes."[Xiii]

To me, this encapsulates many of my concerns relating to the failure of the Exposure Draft and current media discussions to apprehend less overt forms of racism, as well as the bait-and-switch promotion of the ‘level playing field’ - or an egalitarian sounding, yet inherently biased, “more free speech” catch-cry - that will only liberate racist speech while demanding more effort from anti-racist programs.

In the next few of paragraphs I will comment on elements of the Exposure Draft that I see as a cause for concern.

Sections 1 and 2 of the Exposure Draft narrow the scope of unlawful speech in ways that do not adequately protect people from the harm caused by racially loaded speech. Emotional violence, non-physical contact (NPC) abuse, and other psychological forms of intimidation appear to fall beyond the scope of these sections, yet these methods of discrimination should not be thought of as so trivial that they can be removed from consideration.

The language of the existing RDA’s section 18B provides scope for assessing levels of psychological harm caused by offensive speech by assessing whether an act is likely to “…offend, insult, humiliate or intimidate another person or a group of people.” I recognise and support that there exists no ‘right to not be offended,’ but I understand that judgments in RDA cases have used benchmarks for the terms “offend, insult, humiliate” and “intimidate” that go beyond simple hurt feelings. Perhaps here there is scope for the adjustment of these terms to reflect a greater severity of harm, but doing away with the whole section seems premature.

The addition of the term ‘vilify’ to section 1 is a positive step, yet its definition provided in section 2 is limited. Vilifying, it its true sense, is to “lower in estimation or importance,”[xiv] which would properly encompass speech that not only incites hatred against a group, but also maligns and lowers public perceptions of a group.

Section 3 of the Exposure Draft appears to provide an uneven avenue for dismissing discrimination claims. All civil rights victories against racism have involved marginalised people standing up against dominant social paradigms. Taking the “ordinary reasonable member of the Australian community” as the benchmark for determining whether speech intimidates or vilifies an individual, or group of people, ignores and even denigrates the socio-historical struggles that marginalised people have endured.

The “ordinary reasonable member of the Australian community” cannot be expected to understand the social and historical significance of racially loaded language as it pertains to each racial group within Australia. If this standard of arbitration is adopted then it will counterproductively provide the scope to perpetuate dominant racial stereotypes, prejudices, and discrimination. As discussed earlier, racism that is tacitly supported, embedded or deemed trivial will fall beyond the limitations of section 3.

To conclude, it is probably evident that my qualms with the above sections of the Exposure Draft relate directly to my prior concerns about the public debate surrounding the RDA and free speech. Sections 1 and 2 of the Exposure Draft are weak in the same ways that the “more free speech” argument fails to account for social complexities and psychological harms. Section 3 of the Exposure Draft is weak in the ways that idealistic, laissez-faire self-regulation of racist speech will fail to account for subversive racism, and oversells the willingness of people to shout down opinions that they may ultimately agree with. Perhaps it would be more accurate for me to recognise that the promoters of a “more free speech” panacea would consider the failures I see in the Exposure Draft as strengths. And this worries me further.

While I support free speech I am concerned that changes to the RDA will give licence to racially motivated speakers to expand their views throughout the community, while restricting the recourse options for those who are targeted by harmful speech. I recognise that this is a balance that needs to be met, that is, between freedom of speech and freedom from harm, but the axiomatic adherence to freedom of speech in the current public debate (encapsulated in the “right to be bigots”[xv] commentary) shows excessive disregard towards our responsibility to minimise harm.

In closing, I see the RDA as an effective instrument for addressing toxic speech that causes harm to members of our society. In the case of Andrew Bolt, it appears that the RDA has worked as intended. Andrew Bolt didn’t merely cause a few “hurt feelings,” he penned articles containing gross inaccuracies that targeted and maligned the racial identities of 18 individuals. I remain concerned that changes to the RDA will result in more examples of grossly inaccurate public discourse maligning selected sections of the Australian public.

While I remain open to the amendment of the RDA legislation, I do not see the value in pursuing this current, reactionary rewrite of legislation in response to one example of the RDA functioning with ostensible effectiveness.

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About

My name is James and I live in Sydney, Australia.
I'm keen to explore solutions and techniques for addressing environmental challenges that draw from and recognise the social, political, ethical, creative etc. dimensions of such challenges.